Malone v La Playa Nominees Pty Ltd - [2022] VSC 83

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2018 00285

RAYMOND MCGREGOR MALONE	Plaintiff
v
LA PLAYA NOMINEES PTY LTD (ACN 071 767 863)	First Defendant
and
THE REGISTRAR OF TITLES	Second Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 & 30 September, 1, 4, 5, 18, 19, 20, 21 & 22 October, 4 November and 1 December 2021
DATE OF JUDGMENT:	25 February 2022
CASE MAY BE CITED AS:	Malone v La Playa Nominees Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 83

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ADVERSE POSSESSION – Title boundary between two suburban properties – Prior alteration of title boundaries in 2001 – Alleged errors in survey ultimately reflected in registered title boundary – Further application for alteration of title boundaries in 2017 – Caveat lodged by plaintiff and proceedings commenced – Reliability of witnesses – History of ‘fence’ at or about the boundary – Adverse possession – Factual possession – Intention to possess – Estoppel – Transfer of Land Act 1958 (Vic) ss 26R, 41, 42 and 99 – Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 considered and discussed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	AA Walker	T Squared Legal
For the First Defendant	KJD Anderson	Kalus Kenny Intelex
For the Second Defendant	J Collopy (solicitor; appeared in addresses for part of 1 December 2021)	Land Use Victoria Legal

HIS HONOUR:

A Introduction

The plaintiff, Ray Malone, said that he purchased 6 Shandford Avenue, Brighton in about January 2011 and moved into the property later that year.

The plaintiff’s neighbours, at 8 Shandford Avenue, Brighton, are Michael Hirsch and Andrea Murkies. They are husband and wife and also directors of the first defendant, which became the registered proprietor of that property in 1995. Prior to that, the property was, relevantly, owned by both of Ms Murkies’ parents and, later, by Ms Murkies’ mother, Adelaide Murkies.

Relations between the present neighbours have never been good. The position was exacerbated by events relating to renovations undertaken by the plaintiff to the house and garden of 6 Shandford Avenue commencing in 2015.

On 3 March 2015, Mr Hirsch, on behalf of the first defendant, wrote to the plaintiff as follows –

I write in regard to your above property and your recently commenced renovations and works.
I wish to avoid any unpleasantness between us and so I want to advise that the brick, cement block, steel wire and wood post fence that is on my property remains my property. This fence is not on the boundary line and is not a jointly owned fence.
In 2001, my surveyors conducted a comprehensive land and boundary survey and utilising this plan of survey and field records my lawyers lodged an adverse possession claim and a realignment of title boundaries claim with the Land Titles office.
This was successful and a new title was issued that clearly shows that this particular fence and all its attachments and items attached to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSC 83
Decision Date: 25 February 2022

CaseChat Overview and Summary

The plaintiff, Mr Malone, commenced proceedings against La Playa Nominees Pty Ltd in the Supreme Court of Victoria, asserting a claim to the title boundary between two adjacent suburban properties. The dispute arose from a history of disputed boundaries and alleged errors in the survey process. The plaintiff argued that the title boundary had been inaccurately recorded in 2001 and that he had subsequently established adverse possession over a portion of the disputed land. The defendants, La Playa Nominees, contested the plaintiff’s claims, maintaining that the title boundaries were correctly determined and that the plaintiff had not established the necessary elements of adverse possession.

The primary legal issues before the court were whether the plaintiff had established adverse possession over the disputed land and whether the court should alter the registered title boundaries. The court had to determine whether the plaintiff’s factual possession of the land was sufficient, whether he had demonstrated an intention to possess the land adversely, and whether the defendants were estopped from denying the plaintiff's claim. Additionally, the court considered the implications of the Transfer of Land Act 1958 (Vic) and the principles established in Whittlesea City Council v Abbatangelo.

The court found that the plaintiff had not established adverse possession over the disputed land. The evidence showed that the plaintiff’s possession of the land was not exclusive or continuous, and the court was not satisfied that he had demonstrated the necessary intention to possess the land adversely. The court also held that the defendants were not estopped from denying the plaintiff’s claim as there was no evidence of reliance or detriment suffered by the plaintiff due to the defendants’ conduct. The court declined to alter the registered title boundaries, finding that the plaintiff had not met the statutory criteria under the Transfer of Land Act 1958 (Vic). The court dismissed the plaintiff’s claims and ordered him to pay the defendants’ costs.

The final orders of the court were that the plaintiff’s application for alteration of title boundaries be dismissed, and that the plaintiff pay the defendants’ costs of the proceeding.

Orders